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PETITIONER:

MUNICIPAL CORPORATION OF DELHI & ANOTHER

Vs.

RESPONDENT:

SHRI NARESH KUMAR AND OTHERS

DATE OF JUDGMENT: 10/03/1997

BENCH:

B.P. JEEVAN REDDY, K.S. PARIPOORNAN

ACT:

HEADNOTE:

JUDGMENT:

J U D G M E N T

B.P. JEEVAN REDDY, J.

Leave granted.

This appeal involves the interpretation of clause (c)

of sub-section (4) of Section 115 of the Delhi Municipal

Corporation Act, 1957. Sub-Section (4) levies, what is

called, a "General Tax" on "all lands and buildings' in

Delhi except "(C) agricultural lands and buildings (other

than dwelling houses)". The question is whether the farm

houses within in the Delhi Municipal Corporation area are

exigible to general tax as "dwelling houses".

The respondent owns an extent of about 13 bighas in the

Revenue estate of village Bijwasan, Tehsil Mehrauli, New

Delhi. According to him, he carries on agricultural

operations thereon. He constricted building on the said

land, which, according to him, is occupied for purposes

connected with agricultural operations on the said land and

wherein the respondent and his family members stay whenever

they visit the farm. According to the respondent, further

the building is not occupied on a permanent basis farm. The

contention of the respondent before the High Court was that

since the said building is connected with the agriculture

being carried on over the said extent of 13 bighas, it is

exempt from tax under Section 115 (4)(c) notwithstanding the

fact that it is a "dwelling house". On the other hand, the

case of the Corporation was that since the said building is

a "dwelling house" within the meaning of Section 115(4)(c),

it is subject to general tax. According to the corporation,

it is immaterial whether the dwelling house is occupied on a

permanent basis or only occasionally. It is equally

immaterial says the corporation, whether the dwelling house

is occupied for the purpose of agriculture being carried on

over the adjacent lands or otherwise. it is enough that it

is a dwelling unit, says the corporation. It is taxable. The

High Court has not accepted the contention urged by the

corporation. The High Court has opined that a dwelling unit

is exempted from general tax if it is mainly or pre-

dominantly occupied or use for agricultural purposes. This

is what the High Court said:

"We are therefore of the view that

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so far as the exemption provision

in Section 115(4)(c) is concerned,

the test is not whether buildings

or Farm houses are used 'solely' in

connection with agricultural

operations. In Our view, the said

exemption, In our view, the said

exemption applies to 'buildings' or

farm houses used "substantially",

if not solely, for agricultural

purposes. If this test is

satisfied, the building or farm

house falls outside the tax-net. So

far as the exclusionary words

'other than dwelling houses ' are

concerned, we are again of the view

that the buildings or farm houses

must be solely or substantially

used for 'dwelling purposes, that

is to say, with a degree to

continuity and permanency, and not

solely or substantially for

agricultural purpose, then such

buildings will fall inside the tax

net. We do not visualise any third

category of 'buildings' or farm

houses which do not fall into one

or other categories above stated.

Assuming however that any such

intermediate category arises, we

are of the view that the person

claiming the exemption will not be

entitled to exemption from property

tax unless he proves that the

building is solely or substantially

used for 'agricultural purpose'.

Whether a given building is used

substantially for agricultural

purpose, is a question depending

upon the facts and circumstances of

each case and on what, according to

general principles of law could be

said to be the meaning of the words

'agricultural purpose'."

With respect we are unable to agree with the High

Court. Clause (c) exempts "agricultural lands and buildings"

form the levy imposed by Section 115(4). Clause (c),

however, contains an exception within itself. The "dwelling

houses" are excluded from the purview of agricultural lands

and buildings. In other words, once it is a "dwelling house"

it is outside the purview of exempted category. The very

context in which the expression "dwelling houses" occurs

shows that even the dwelling houses situated on, over or in

the midst of agricultural lands were sought to be excluded

from the exempted category of "agricultural lands and

buildings". An agricultural building may be a godown where

the agricultural produce is stored, it ay be warehouse or it

may be a building housing the machinery used for purpose of

agriculture. A dwelling house can also be occupied by

persons carrying on the agriculture i.e., to carry on or

supervise the agricultural operation. But according to

Section 115(4) (c), the "dwelling houses" as such are

excluded from the category of agricultural buildings. In

other words, even if it possible to say that a dwelling

house is an "agricultural building", yet it is excluded

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specifically by the statute from the fold of agricultural

buildings. Applying the test evolved by the High Court would

remove the distinction between "agricultural buildings" and

"dwelling houses" which are mentioned together in clause

(c). an agricultural building is a building used mainly or

pre-dominantly for the purpose of agricultural. If the same

test is applied to dwelling houses than the very purpose and

object behind excluding dwelling houses from the purview of

agricultural buildings would disappear. We, therefore, agree

with the Corporation that once a building is a dwelling

house, no further enquiry need be made whether it is used

mainly or pre-dominantly for agricultural purpose or not.

It is enough that it is a dwelling house. It becomes

exigible to general tax. This would be so even if the

dwelling house is situated in the midst of a farm or is a

part of the farm or it may be, what is called, a "farm

house".

So far as the argument of occasional (as contrasted

with regular) occupation is concerned, we may refer to the

decision of this court in the Tata engineering And

Locomotive Company Limited v. The Gram Panchayat,

Pimpri Waghere [ 1976 (4) S.C.C. 177]. In Para 18, the

following statement occurs: It may be stated generally that

the wood "house" is a structure of a permanent character. It

is structurally severed from other tenements. It is

structurally severed from other tenements. It is not

necessary that a house if adapted for residential purposes

should be actually dwelt in (see Daniel v. Coulsting -

(1845) 14 LJ CP 70: 135 ER 53). A building in Covent Garden

had formerly been a dwelling house but was converted into a

fruitstore warehouse and office in which no one slept and

was held to be a 'house' as regards assessment to the

rector's rate within the provisions of the relevant statue."

The next question is - if a "dwelling house" is

exigible to levy of general tax, how much of the adjacent

land should be treated as an integral part of the dwelling

house. IN other words, the question is whether the entire

land surrounding or abutting the dwelling house. The answer

to this question is: a dwelling house includes within its

ambit such appurtenant land as is necessary for a proper and

convenient enjoyment of the dwelling house. The extent of

such appurtenant land is naturally a question of fact to be

decided in each case. We have only stated the test. It is

for the appropriate assessing authority to determine the

extent of land which can be called appurtenant land to a

given dwelling house.

The third question urged before us is as to the meaning

of the expression "agricultural land". This question has not

been really gone into by the High Court. When can a land be

called an agricultural land has been the subject matter of

good amount of debate under various enactments including the

Income Tax Act and the Wealth Tax Act. Whether a land is an

agricultural land or not is a mixed question of fact and

law, which has to be decided in the facts and circumstances

of the each case. We are not prepared to go into details, to

determine whether the land involved in this appeal is

"agricultural land", since that question has not been gone

into by the High Court. The three issues set out by the High

Court do not take in this issue. It is enough to say for

the purpose of this appeal that a dwelling house situated on

an agricultural land is not exempt from general tax and that

a dwelling house exempt from general tax and that a dwelling

house includes within its ambit such appurtenant land as is

necessary for a proper and convenient land as is necessary

for a proper and convenient enjoyment of the dwelling house.

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No more can be said, or need be said, in this appeal.

The appeal is allowed in the manner indicated above.

The matter should go back to the Assessing Authority for

appropriate orders in the light of the law laid down herein.

No order as to costs.